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Monday, June 7, 2010

The NLRB in Brown University, 342 NLRB 483 (July 13, 2004), available here, held that graduate students are not “employees” for the purposes of the National Labor Relations Act.

There follows a synopsis of the Brown University decision:

ISSUE: Whether student graduate school teaching assistants for whom supervised teaching or research is an integral part of their academic development must be treated as “employees” for purposes of unionization and collective bargaining protections under section 2(3) of the NLRA.

HOLDING: In a 3-2 decision, the Board reversed its previous decision in New York University, and held that graduate student assistants are primarily students and not statutory employees. The Board found that graduate student assistants are performing services in connection with their studies, and that they have a predominantly academic, rather than economic, relationship with their schools.

DISSENT: Members Liebman and Walsh dissented, stating that the Majority decision is “woefully out of touch with contemporary academic reality” and demonstrates “a troubling lack of interest in empirical evidence.” They state that the Majority “disregards the plain language of the Act which defines ‘employees’ so broadly that graduate students who perform services for, and under the control of, their universities are easily covered.” The Dissent states that the Majority has made a policy decision that “rightly belongs to Congress.” In a colorful phrase, the Dissenters accuse the Majority of erring by “seeing the academic world as somehow removed from the economic realm that labor law addresses—as if there is no room in the ivory tower for a sweatshop.” The dissenters would apply what they characterize as the plain meaning of section 2(3) and its broad definition of employee which “reflects the common law agency doctrine of the conventional master-servant relationship.” Thus, the dissenters would find graduate school teaching assistants are employees as defined by section 2(3) of the Act.

Citing empirical evidence of mature collective bargaining relationships at more than a dozen major universities, the Dissent rejects the Majority finding that issues related to the terms and conditions of graduate student employment are “not readily adaptable to the collective bargaining process” and that imposing collective bargaining will harm academic freedom and the quality of higher education.

The Dissent concludes that “the Majority has overstepped its authority, overlooked the economic realities of the academic world, and overruled NYU without ever coming to terms with the rationale for the decision. The result leaves graduate students outside the Act's protections and without recourse to its mechanisms for resolving labor disputes. The developments that brought graduate students to the Board will not go away ....”

SIGNIFICANCE: If Brown University is reversed, thousands of graduate school teaching assistants will be eligible for protected concerted activities in forming or joining a union, bargaining collectively, and striking or engaging in other forms of work stoppages.

The preceding was taken from “The National Labor Relations Board in the Obama Administration: What Changes to Expect” by Harold and Christopher Coxson of Ogletree Deakins, which is available here.

Both the House and Senate have introduced the Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461, S. 813), a bill that would reverse the Brown University decision by permitting private university students serving as teaching and research assistants to form and join a union. The bill would add the following to the NLRA’s definition of “employee”: “The term ‘employee’ includes a student enrolled at [a private] institution of higher education . . . who is performing work for remuneration at the direction of the institution, whether or not the work relates to the student’s course of study.”

Further, it has been speculated that the new Obama NLRB will overturn that decision and confer the right to unionize upon grad students. Indeed, the United Auto Workers have worked with a delegation of graduate assistants at New York University to petition the university for a union. If, as is expected, the university refuses to recognize the union, the graduate assistants plan to ask for a formal election, which, in turn, might prompt the Board to adopt then-Member Liebman’s (now Chairwoman of the Board) dissent in Brown University and extend the NLRA’s jurisdiction to include graduate students. For more discussion on the NYU grad student’s attempt to unionize, see here, here, here, here, and here.

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Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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